Issue link: https://read.dmtmag.com/i/120608
Mayan Patent Lawyers I LEGAL LINE t now appears that the dire Mayan predictions of the end of time were overstated. However, if the Mayans had thought about inventing patent lawyers, the predictions hit much closer to home. In short, the patent system, as we know it today, is gone forever, and our government – seeing, as always, a new way to squeeze its citizens – is now considering the patent and trademark business as a profit center. This concept in government is not only opposite to the intent of the founding fathers, but it's a flawed business model from the start. With apologies to our non-U.S. members, the history lessons told us that government operations like the Post Office and the Patent Office were creations of Congress, and as such, were services for the betterment of the nation as a whole and were to be paid for out of general tax revenues. Like the Post Office, the Patent Office would only charge minimal fees to cover some part of its operations, but the office was for the common good of inventors and to enhance the development of industry and commerce in an explosively-growing new nation. This has gone horribly wrong as the patent system in the U.S. has been completely overwhelmed in the last 10 years. Not only are there more genuine inventions, particularly in drugs, electronics, hybrid plants, and chemicals, but also the system has been involuntarily "spread" to include "business methods" and, of course, software. This situation has been made even worse by the time-honored system of randomly assigning patent examiners to incoming cases. This means that your hydraulic patent could be examined by a botanist, while your neighbor's new plant patent is examined by a mechanical engineer...and, that is one reason that the patent office takes at least 18-20 months from the date of filing a patent to the first response to the inventor by the patent office. It gets worse, for example, if you are fortunate enough and patient enough to obtain a patent, say on a particular GET and adaptor. If you believe you have some new improvements and want to either expand the existing patent or apply for an entirely new patent, there is no rule that would send your second "case" back to the examiner who worked on the first patent. Thus, you might start over and, incredibly, have a completely inconsistent result. In this micro world of the patent office, starting over and doing it the hard way yet another time is the rule of practice and law. Fearing the apocalypse, the wise men and women in Congress took bold steps to avert disaster, and in doing so, guaranteed it. Starting in mid-March 2013, the new rules take full effect. The following will apply: 1. The first person to actually invent something was, on fair and reasonable proof, entitled to be the inventor on a patent. Not any more, now it is the first person who files an application, whether ready or not, and, incredibly, Robert W. McIntyre IDA Association Legal Counsel where an actual invention may not even exist. 2. The rules for co-inventors are changed so that you must have corralled all of the possible inventors or contributors to qualify for a patent. 3. If you have an actual invention in process or test, someone else who may only have the barest idea along the same lines, can beat you to the patent by filing first. 4. If you do file first to "win the race" and try to change the application to include what you actually invented, you are generally not permitted to do so. Thus, the system is choked with halfbaked ideas on their way to being half-baked patents that stall and constrict genuine commerce and stifle innovation. 5. If you are being accused of infringement, or want to make something that might be covered by a potentially invalid patent, asking the patent office to reexamine the patent now costs over $18,000 in filing fees, instead of $2,000. 6. Fees are up across the board, sometimes 10,000 percent. Build a barely functioning monopoly, and charge whatever you want as the only game in Continued on page 62 IDA UNIVERSAL March-April 2013 11